Intestate Succession

Non-Marital Child

Jeter v. McGraw, 79 S.W.3d 211 (Tex. App.—Beaumont 2002, pet. denied).


Husband and Wife were married in 1931. In 1935, Husband fathered Non-Marital Child. Husband died in 1947, still married and without other children, owning a 25% interest in certain real property as his community property share. In the early 1980s, Wife conveyed all of her interest in this property to Grantee. Non-Marital Child now claims that Husband’s 25% passed to him under intestacy, rather than to Wife. On the other hand, Grantee asserts that Non-Marital Child must establish paternity under the statutes as they existed when Husband died. Grantee thus argues that Non-Marital Child is precluded from inheriting because the statute permitted a non-marital child to inherit from the father only if the father subsequently married the non-marital child’s mother. The trial court ruled in favor of Grantee and Non-Marital Child appealed.

The appellate court reversed and remanded the case for reconsideration by the trial court. The court first examined Grantee’s claim that Non-Marital Child is precluded from asserting paternity by the then-existing statute. The court indicated that it would be unconstitutional to apply this statute retroactively. The court cited both Texas and United States Supreme Court opinions which have held that statutes such as the 1947 Texas provision are unconstitutional and may not be given effect.

Grantee next raised the affirmative defense of the running of the four-year statute of limitations because Non-Marital Child knew about his true paternity for decades more than four years and did not timely pursue his claim. The court examined the two leading Texas cases on the issue and found a key distinguishing point. In York v. Flowers, 872 S.W.2d 13 (Tex. App.—San Antonio 1994, writ denied), the non-marital child was allowed to pursue her claim despite the passage of more than four years because the suit was for the recovery of certain real property and thus outside of the residuary four year period in Tex. Civ. Prac. & Rem. Code § 16.051. The non-marital children in Cantu v. Sapenter, 937 S.W.2d 550 (Tex. App.—San Antonio 1996, writ denied), however, were precluded from asserting their claims after the four year period elapsed because the action was only to establish heirship and there was no real property issue before the court. Accordingly, Non-Marital Child is not bound by the four year statute of limitations because he is attempting to recover specific real property. The court, however, notes that Non-Marital Child could be barred by adverse possession statutes and suggests that this issue be considered by the trial court.

Moral: Purchasers of real property should be certain to obtain title insurance to protect against the risk that a non-marital child of one of the prior owners will successfully assert a claim to the property.